ASA goes online to swing stick at new media advertisers

From 1 March 2011 the Advertising Standards Agency will be taking over responsibility for the regulation of online marketing communications, and this week they launched a cross-media ad campaign (outdoor, radio, press, online) to make sure you know about the change.

The campaign, running up until 27 February will inform advertisers that from March, the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (the CAP Code) will apply to marketing messages online. That includes rules relating to misleading advertising, social responsibility and the protection of children. This extension to the ASA’s remit will cover marketing communications on organisations’ own websites and in other non-paid-for space under their control.

According to the ASA, that means:

Advertisers’ own marketing messages on their own websites, regardless of sector, type of businesses or size of organisation.

Marketing communications in other non-paid-for space under the advertiser’s control, such as social networking sites like Facebook and Twitter.

In an upbeat assessment of the change, the ASA writes: "This significant development in advertising regulation is good news for both consumer and business protection as it will ensure the same high standards as in other media."

Alternatively, it is possible that the move represents the opening of a very large can of worms that may yet prove more than the ASA can usefully handle.

With regards to what will be covered, the ASA explain helpfully that online advertising "is a type of communication for a good, service, opportunity or gift that primarily sets out to sell something. Of course, marketing communications may set out to sell in a myriad of different ways and may not necessarily include a price or seek an immediate financial transaction."

Clear? They go on: "What it isn’t is another type of communication explicitly excluded by the CAP Code, for example: classified private advertisements, press releases and other public relations material, editorial content, political advertisements, corporate reports, investor relations etc."

While that distinction may make sense in traditional media, it is likely to create some difficulty for businesses online for whom the distinction between "public relations material" and "a type of communication ... that may not necessarily ... seek an immediate financial transaction” is not immediately clear.

Never fear, though, if all this proves a touch too complex, advertisers can always sign up to CAP services for advice and guidance on complying with the code.

Questions too may be asked as to what the ASA will do if a website owner simply sticks two fingers up to them and refuses to comply. Where there is a breach of the CAP, the ASA will seek "a written assurance that the problematic claim or image will be removed or amended". In the rare cases that such does not happen in traditional media, they will "consider the application of appropriate sanctions".

We asked the ASA what such sanctions might imply. A spokesman told us that the ASA has no legal remedies in such a case. However, where an ad made a misleading claim, they would refer it to the Office of Fair Trading and local Trading Standards. In extreme cases, they would write up the case on their own site, and they had found the negative publicity usually tended to bring the advertiser back into line.

We also asked ISPA – the trade association for Internet Service Providers – for their view on this matter, but they are still considering their position on this issue.

A spokesman for the ASA told us: "The campaign will be featuring entirely in donated space." ®